Behind the GPL version 3--and beyond

The General Public License covers some of the most important software
in widespread use: Linux, MySQL (dual-licensed by the vendor), Samba,
and many other modern packages, not to forget the suite of compiler
tools and command-line utilities from the Free Software Foundation,
for which the GPL was originally designed.

That's why hundreds of people came to hear Richard Stallman and Eben
Moglen (law professor and general counsel for the FSF) lay out their
proposed new version of GPL on Monday. And why the audience included
world-renowned leaders from many free software projects--even some
projects such as Apache that aren't covered by the GPL.

After the dramatic convocationI reported on,
where the veil was lifted on the hitherto secret draft of the GPLv3,
the packed hall at MIT thinned out over the next day and a half. Most
people got what they needed at the opening session: they found that
the draft opposed patents and Digital Rights management, as expected,
but that it made no drastic changes in reaction to these threats or
other changes in the software field, and that the draft was graciously
accommodating to Application Service Providers (who could have
expected their trade secrets to come under attack), to software under
non-GPL licenses, and to companies acting in good faith to propagate
and make a business from GPL-covered software.

These attendees probably also realized that further work on the GPL
was going to descend into detailed textual analysis requiring both
sophistication and dedication. And most people were ready to leave
that to the committees set up by the FSF.

But don't fade into the background. It's easy to view the GPL and the ongoing
discussion about it
through the nicely designedwebsite,
including a Javascript-drivencomment area.
Moglen has urged the public to stay involved. And open source
proponent Bruce Perens offered several reasons to follow the upcoming
year of GPL discussion:

This is a rare chance for the public to make law.

His committee found many problems with the draft; it will need a lot
of work.

Feedback will be taken seriously. Bruce's committee, at least,
promises to review comments carefully.

So try visiting the site from time to time and take at least an hour
to look at where discussion is heading. Don't expect to reverse the
philosophy behind the endeavor--Bruce believes "the intent of the
document is sound"--but help to avoid unexpected harm.

Behind the GPL version 3

So what's in the GPLv3? The actualdraft license
is not that hard to read, and arationale document
helps to explain it. Still, I feel it worthwhile to summarize some of
the more interesting points:

Compatibility with other free licenses

The drafters made changes that allow programmers to combine
GPL-covered code with code from other projects. The Apache and Eclipse
licenses were explicitly mentioned as compatible. This outreach is
particularly praiseworthy because those two projects offer key support
to Java programmers, and some others in the free software movement
have sometimes expressed distrust of Java. This change should help
everybody work together.

Patents

These are mentioned four places in the draft. The goals here are
modest: essentially, to force programmers to relinquish patent-related
controls if they use free software. If they have patents on free
software, they must give a patent license to anyone using it. If they
have cross-licensed patents or otherwise gained rights to use patents,
they must help spread this protection to the users of their software.

Digital Rights Management

The goals here are also modest: to make sure free software and DRM are
not used together--in short, to prevent freedom from being used
against itself. First, users are forbidden from closing off access to
works through encryption or authentication keys. (This doesn't cover
legitimate uses of encryption and authentication for privacy
purposes.) Another clause attacks the notorious "technical
circumvention" measures in the Digital Millennium Copyright Act and
copycat treaties and laws, ruling out the use of GPL-covered software
to carry out the measures.

Tracking infringement

Previous versions of the GPL had built-in termination of the license
if a propagator infringed on it. This minimized the need for copyleft
holders to police users, but it placed a burden on vendors and other
users trying to build systems on free software. They might infringe
unknowingly and have the carpet pulled out from under them at any
time.

Version 3 requires the copyleft holder to notify an infringer within
60 days of the occurrence. The new clause provides protection for
people trying to build a business. It also demonstrates a confidence
by the drafters that the free software community has matured enough to
invest the necessary resources to check up on users.

Provision for additional restrictions

If copyright holders want to go further than the GPL in trying to open
up software--by requiring Application Service Providers to reveal the
code running on their servers, or to retaliate against patent
holders--they are explicitly allowed to do so. These clauses allow
people to experiment with their own solutions to what the Free
Software Foundation sees as problems, but for which it currently does
not see effective remedies.

There are many, many more details. The drafters have learned over the
years which clauses of the GPL have created confusion or prevented
people from doing useful things. The license has also been drafted
with more care to making it applicable in different countries.

Zak Greant, a volunteer who answers licensing questions for the FSF,
told me he is happy with the new draft, finding it both clearer and
more comprehensive. While he currently has to refer people to a FAQ or
other ancillary documents to answer questions, he estimates that 70%
of the questions now could be answered by the legal document itself.
I hope the preceding list makes you curious enough to check out the
official FSF site.

And Beyond

All that said, I took away from the conference a pessimistic
impression that the GPL is not the battlefield where the information
struggles of our day will be resolved. The drafters made no
suggestion that they had solved the problems of patents, DRM, or other
threats to user's control over information. On the contrary, they used
the conference as a forum to call for political action on these
threats.

The looming collision between the control-obsessed entertainment
industry and today's dynamic communities of programmers and modders
will be carried out in the social realm more than the legal one. The
law may produce some of the carnage, but it will mostly come along to
clean up the debris after the victory of one side or the other.

If the public turns against Digital Rights Management--if they even
understand what it is--they will do so because of outrageous missteps
like the recent botched Sony CD controls. Even during this highly
publicized incident, it was nearly impossible to find a teachable
moment concerning the importance of user control over computer systems
and software.

I hope FSF spokesperson Peter Brown is right in saying that we have a
great opportunity to explain the benefits of freedom to the public
over the coming year. I also sympathize with his claim that one must
use the term "freedom" instead of focusing on "open source."

But opponents of the "open source" terminology always caricature the
term and its supporters. Those who pushed for open source have
promoted its ethics and community benefits just as free software
proponents have. The virtue of "openness" as a general principle is
powerful, and has brought people out on the streets in many countries.

I admit that the words "open source" do not slam the ethical challenge
down on the table the way the word "freedom" does. But "open source"
has helped free software spread to far more places in business and
public organization. Now many more people have something to defend
when the free software proponents warn them they're in danger of
losing it.

I think FSF knows that it needs allies; that's why the proposed
license demonstrates so much conciliation and coalition-building. In
addition, popularity of Samba, and the presence of Samba project
leaders at conference, shows that the free software movement has
accepted the need to co-exist with a non-free world, at least for a
while.

The FSF has reacted to the encroachment of outside control by trying
to exert forms of control all their own. They have often been
criticized for this, and I don't want to rehash the flames wars here.
But after the license assails software patents and DRM, it goes on to
impose a ban on "works that illegally invade users' privacy." This
makes some sense in context (because some forms of DRM snoop on users)
but one wonders when the FSF is going to stop.

Why not keep going and ban the use of free software, for instance, to
promulgate racism? The obvious answer to this question is that it's
hard to define what constitutes promulgating racism, and that banning
it would lead to encroachments on other activities that are
beneficial. But the same dilemmas dog the FSF as it tries to fend off
patents and DRM.

The other way to approach free software is the old BSD way of throwing
open the doors and allowing proprietary vendors to enfold the software
into closed products. Proponents of the BSD approach have made a
strong argument: if the free software movement is really a superior
way to treat software and its users, the free versions of the software
will ultimately win out over the proprietary ones. After all, who
could turn down the free software promise of open source code, a
community of experts to turn to for support, and a stream of new
features that will automatically interoperate on different systems?

History seems to bear out this argument, but once again, I'm not
writing this to revive an old debate. I'm putting it here to show that
the fate of free software depends on the reactions of the general
public.

It's good for programmers to have a choice. For those who
feel it safer to require the unencumbered freedom of what they've
produced, the GPL should be as robust and usable as possible. The year
2006 is our year to make it so.

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